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Menopause matters: How businesses can tackle the taboo

18 October 2021 #Employment


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CIPD is calling on employers to break the workplace taboo and provide better support for working women.

The NHS states that the average age for menopause transition in the UK is 51. Women over the age of 50 are the fastest growing group in the UK workforce according to the Office for National Statistics, with the number of 50 to 64-year-old women in work currently at 4.4 million.

Menopause still remains mismanaged and shrouded in silence in the workplace, despite impacting an increasing number of employees.

This is strengthened by the recent inquiry in July 2021 into exisiting legislation and workplace practices around menopause by the House of Commons Women and Equalities Committee. The inquiry is seeking views on whether further legislation is required to enable employers to put in place a workplace menopause policy to protect those going through the menopause while at work to address gender equality and discrimination. UK Parliament Committees – Menopause and the workplace

In a recent TUC survey of 4,000 women, 85% said the menopause affected their working life. This was because until recently women have remained silent regarding their experiences through menopause due to fear to ageism and potentially losing their job. 

Little appears to have changed as a study in 2019 carried out by the CIPD and YouGov survey found that three out of five menopausal working women between the ages of 45 and 55 said it had a negative impact on them at work.

Of those, nearly two-thirds (65%) said they were less able to concentrate, more than half (58%) said they experienced more stress and a similar figure (52%) said they felt less patient with clients and colleagues.

Nearly a third of women surveyed (30%) said they had taken sick leave because of their symptoms, but only a quarter felt able to tell their manager the real reason for their absence, due to privacy considerations (45%), embarrassment (34%) and managers being perceived as unsupportive (32%).

Similar research from Health & Her and Censuswide indicates that women in this demographic have left or considered leaving their careers because of the difficulty of dealing with symptoms in the workplace. The most common symptoms reported in the CIPD’s survey are hot flushes (70%), sleep disturbances (64%) and night sweats (58%). Psychological issues such as mood swings, anxiety and memory loss were also widely reported (56%).

This could mean that women are leaving businesses at the peak of their expertise which will ultimately 'impact productivity' in organsiatons. Many women in this age group are likely to hold senior roles and so their exit could result in less diversity at executive levels. 

There is guidance for employers on the menopause which the CIPD released in 2019, aimed at educating and training line managers to provide better support to affected employees. 

Legal position on the menopause

Employers have a duty to protect the health and wellbeing of their workforce and not to behave in a way which may undermine the implied duty of trust and confidence. Given the ways that symptoms can manifest, it is important that line managers don’t jump the gun and resort to performance management or disciplinary procedures without considering the underlying cause – especially where the extent of the transition symptoms experienced by the employee are such that they amount to a disability.

The case law on menopause transition in the UK is limited and non-binding but gives an indication of how potential claims could arise.

Direct sex discrimination – In Merchant vs BT plc ET/1401305/11, Ms Merchant was dismissed following a final warning for poor performance. She had previously given her manager a letter from her doctor explaining that she was “going through the menopause which can affect her level of concentration at times”. In breach of BT’s performance management policy, the manager decided not to investigate her symptoms any further. The tribunal upheld her claims of direct sex discrimination and unfair dismissal. It held that the manager would never have adopted “this bizarre and irrational approach with other non-female-related conditions”. The manager also wrongly decided that his wife’s experience was relevant evidence for his employee’s.

Disability discrimination – In Davies v Scottish Courts and Tribunals Service S/4104575/2017, Ms Davies was found to have been unfairly dismissed and reinstated to her role with back pay and injury to feelings compensation. The judge found that she had been dismissed “because of something arising in consequence of her disability” (section 15 of the Equality Act 2010). She suffered from transition symptoms which included heavy bleeding, as well as stress, memory loss and other symptoms. Her employer managed the requisite reasonable adjustments well. However, she could not recall if her tablets had been placed in a jug and there was a risk that two male colleagues had drunk from that jug. She was accused of lying and bringing her employer into disrepute, and consequently dismissed. It was held that she was unfairly dismissed because, during its investigation and in making the decision to dismiss, her employer did not consider that her “conduct was affected by her disability”. Her memory loss and confusion were in fact caused by her disability (which was in turn the result of her transition).

Other possible claims

  • Indirect sex and disability discrimination if, for example, a uniform policy is inconsistent with the need for cooling clothes or hiding sweat patches.
  • Sex, disability and age-related harassment if an employee is subjected to unwanted conduct which violates her dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for her.
  • Victimisation if she complains about sex, age or disability discrimination and is treated less favourably as a result.
  • Failure to make reasonable adjustments to the workplace (if her conditions amount to a disability). Steps that an employer might consider include flexible working, later starts to manage insomnia, access to cold water and ventilation and managing symptoms such as memory loss.

The CIPD guidance provides further practical suggestions to help employers create a supportive culture that allows women to thrive in the workplace during menopause – something that benefits employers and employees alike.

Employers could tackle the matter proactively by applying some of the following in your business:

  • Improve the working environment by providing fans and ventilation 
  • Ensuring your sickness policy is up to date which specifically addresses menopause symptoms and effects. 
  • Ensure menopause is mentioned in diversity and equality training 
  • Nominate health and safety officers who are trained in wellbeing around the menopause and treatments that could be advised for employees. 
Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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Liz  Bradley

Liz Bradley
Senior Solicitor

E: lbradley@clarkslegal.com
T: 0118 960 4638
M: 0777 574 2501

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